Drug Abuse

Chapter 2: The Perspective: Theoretical Issues, Legal Context; Model

The focus of this book is upon the societal response to a particular form of criminally sanctioned behavior-cannabis use. The adverse and beneficial social consequences of applying the criminal sanction to drug users have received scant systematic analysis. In this chapter, some of the theoretical issues surrounding the effects and purpose of the criminal law will be explored in order to show how the criminalization of drug users relates to broader concerns in sociology and law. Then a summary and historical over-view of Canadian narcotic drug law and its enforcement will set the problem in a legal context. Finally, a model of criminalization will be presented as a means of-assessing the impact of the policy on individuals subjected to criminal sanction.

LAW AND LABELING

Aside from the direct policy implications, an interest in the criminalization of cannabis offenders also arises in two related perspectives. The first of these is the "labeling" school of sociology, which has raised the question of whether the response to deviance may be more problematic than the behavior itself. Secondly, with respect to law, scholars have been concerned with arguments about the proper limits of the criminal sanction for more than a century. A brief review of the perspective of each of these two areas is important because without them, the questions addressed by this study might not have been asked.

The absence of agreement as to whether cannabis consumption should be considered a crime places a study of the effects of cannabis prohibition broadly within the conflict tradition of sociology. The theorists of the consensus school tend to concentrate on laws backed by strong social support and disregard those without it (Hopkins, 1975:615). In contrast, those adopting a conflict vantage point tend to find their subject matter in laws which lack normative agreement (Rubington and Weinberg, 1977:248). In essence, consensual theories of crime are more interested in explaining illicit behavior while conflict theories are more concerned with the variable status of behavior (Hagan, 1977:141).

The labeling perspective emphasizes the societal response to a particular behavior. This theoretical approach has been expressed in the work of a number of sociologists over the past 40 years,1 and has particular relevance to the study of the consequences of the process of community or official responses. Within this framework, attention is redirected from an individual and his or her "deviant" behavior toward the nature of the official reaction and its effects on an individual’s identity and social position. A central concern expressed by the labeling approach is that the official response to an act of primary deviation may intensify both self perceptions and other perceptions, so that the "deviant" label is confirmed as a kind of master status. In the process of secondary deviation escalation of the disapproved conduct, rather than cessation, results (Lemert, 1951). The public identification of the rule-breaker is the necessary condition for defining deviance and is considered particularly crucial in deter-mining subsequent behavior (Becker, 1963:31). The application of a criminal label is viewed as especially degrading and stigmatizing (Garfinkel, 1956). The labeling Perspective implicitly, therefore, suggests liabilities associated with this process, and poses the question of what is ultimately the effect of creating criminals.

Even critics of the labeling perspective have acknowledged its special contribution to policy-relevant studies of criminalization:

The labeling hypothesis stimulates thinking about the costs of applying the criminal law to certain categories of disapproved behaviors. It . . . urges assessment of the relative costs and benefits of the criminalization or decriminalization of immoral, peculiar, or unhealthful conduct. (Nettler, 1974, cited in Rubington and Weinberg, 1977:2X2)

Since Becker (1963), several writers have also relied on the example of marijuana use to portray the significance of criminal prohibition by distinguishing the degree of response to various socially disapproved behaviors.2 Again, Nettler has made this point:

The careers of some different kinds of people are made even more different by the fact that some portion of their lives must be spent in dodging the consequences of the official response to their deviance. The model here is that of the marijuana user, whose life may be changed by the criminalization of his preference. (p. 232)

Thus, an interest in the criminalization of cannabis offenders is intimately related to the broader concerns of the labeling perspective in sociology.

The labeling or societal reaction perspective has contributed to the formulation of this study, but this should not be taken as any confirmed acceptance of its tenets. This study has, however, attempted to document empirical the types of outcomes associated with the particular label, "canna is criminal." The relatively small amount of systematic research actually done on the propositions of labeling has provided rather limited support for its assertions (Jensen, 1972; Foster et al., 1972; Ageton and Elliot, 1974; Giordano, 1975; McAllister, 1974; Siegal, 1975; Hetburn, 1977). As Hagan (1977) has noted, we are only beginning to find out whether interrelationships of individual, situation, and penalty produce either positive or negative effects, if any effect at all.

The second theme drawn upon in this study is the discussion among legal scholars about the appropriate scope of the criminal sanction. The view that the criminal law has been seriously over-extended in this century is reflected in these titles: The Crisis of Overcriminalization (Kadish, 1967), The Borderland of Criminal Justice (Allen, 1964) and The Limits of the Criminal Sanction (Packer, 1968). These authors argue that the criminalization of certain activities which are primarily matters of personal health and morality creates disrespect for the tradition and role of law, and overburdens the criminal justice machinery. Moreover, while enforcement may be, on the whole, ineffective in preventing or reducing these types of "crimes" it may inhibit the discovery of alternative means of dealing with the problems (Giffen, 1976b). Thus the criminal justice system is deflected from its principal task of responding to "serious" crime in the community. Recently, the Law Reform Commission of Canada has taken up these arguments in Our Criminal Law (1976) and attempted to provide broad guidelines for the reform of the criminal law. In a rational and systematic way, "harm" of particular behaviors would be assessed and decisions made to remove them from the Criminal Code if certain criteria were not met, such as being "wrongful acts seriously threatening . . . fundamental social values" (1976:20).

The Law Reform Commission of Canada has made no recommendation officially on cannabis, but it did include drug offenses in its list of those "whose wrongfulness and seriousness today [are] controversial [and] should be carefully reconsidered" (1976:27). In testimony before the Senate hearings on proposed changes in Canada’s cannabis law, the Chairman of the Law Reform Commission made a more specific statement about the application of the criminal law to this behavior:

In addition to the costs to the individual convicted and the economic cost to society, the criminal law may exact a less easily quantified cost to society in terms of resentment, disrespect, and alienation. The costs associated with criminal law are so great that its use against marijuana use could only be justified on a clear showing of serious harm to others, but not (except in the case of children) if the evidence shows that it only harms the user. If deterrence and reform wouldn't work or if they would hardly work, then using criminal law under this head would impose benefit-less costs (Senate, 1975: 40-42)

Thus, the concern of the legal scholars can be seen to be directed at the same subject matter as the proponents of the labeling perspective, i.e. the legal status of crimes that lack societal consensus. The criticism of the tendency to "overcriminalize" stems from a sense of the proper role and function of the law in society. While the labeling approach focuses on the effects on the individual processed, the legal critics have highlighted the stresses on the justice system created by types of legislation such as the cannabis prohibition. Areas of research suggested by this legal perspective include: the enforcement process (e.g. effects on the target group and reciprocal reaction in the community); the judicial process (e.g. workload, actual and perceived consistency of sentencing); and attitudes of respect or disrespect for the law (e.g. as displayed by offenders and the larger public). Thus both the labeling perspective and the overcriminalization stance encourage the assessment of the costs and benefits associated with the use of the criminal law in an effort to control conduct that draws uneven social disapproval. The-relative effectiveness of the policy then can become a matter for debat’e and possible legal change.

CANADIAN DRUG LAW: Its History and Application

TABLE I
Major Developments in Canada's Drug Laws 1908-1979

* Refers to both possession and distribution offenses unless otherwise stated. No distinction was made regarding  penalties from 1911, when possession offense was first introduced, until 1954.

The Current Situation in Brief

Although cannabis is not an opiate narcotic in any pharmacological sense, the law governing all cannabis substances is the Narcotic Control Act.3 In Canadian criminal law, there are three categories of offenses: summary, indictable, and hybrid offenses. Of the chief offenses under the Narcotic Control Act, only unauthorized or "simple" possession is a hybrid offense and can be treated as either summary or indictable by the crown. The other offenses-trafficking, possession for the purpose of trafficking, importing, and cultivation-are all indictable offenses.

The penalties provided for offenses involving cannabis are the same as for the opiate narcotics and cocaine which are also included in the prohibited drug schedule of the Narcotic Control Act. The maximum sentence for cultivation and simple possession as an indictable proceeding is seven years imprisonment, and for the other offenses, life imprisonment. A minimum sentence of seven years is stipulated for the importation of narcotics. On the summary option for simple possession, the maximum penalty for a first offense is a fine of $1,000 and/or six months imprisonment; these limits are doubled for a repeated offense. An absolute or conditional discharge, which imposes a finding of guilt but not a conviction, is a sentencing possibility for simple possession and cultivation only. Fine, probation, or discharge are the most common outcomes of a possession charge, while a jail term is frequently imposed for the other offenses, and for importing always.

Canadian law extends special powers to the police to aid in the apprehension of suspected drug law violations (see Solomon, 1980).
Under the authority of section 10 of the Narcotic Control Act,
(1) a peace officer may, at any time,
(a) without a warrant enter and search any place other than a dwelling house . . . in which he reasonably believes there is a narcotic by means of or in respect of which an offence under this Act has been committed;
(b) search any person found in such a place....

A general warrant called a writ of assistance, issued in the name of a Royal Canadian Mounted Police (RCMP) officer, extends the power to the search of a dwelling and its inhabitants.4 In conducting a search for prohibited substances, .

. . . a peace officer may, with such assistance as he deems necessary, break open any door, window, lock, fastener, floor, wall, ceiling, compartment plumbing fixture, box, container or any other thing.5

The reasonable belief of an officer as a foundation for drug searches includes "confidential police information" that need not be revealed in court.6

These police powers of search in drug matters are part of a legal system which permits the admissibility in a court of law of illegally obtained evidence relevant to the offense.7 This is in contrast to the operation of the exclusionary rule in the United States which renders inadmissible in a trial any evidence obtained by illegal search (Casenotes, 1978:584). In Canada, an individual convicted on the basis of illegally obtained evidence has little recourse other than to press a civil suit against the arresting officer. This distinctive feature of Canada’s legal institution, in combination with special police powers of warrantless search and blanket warrants against drug crime, create a favorable climate for vigorous enforcement of the cannabis prohibition.

After legal changes in 1969 and 1972 which made less severe penalties available for simple possession, in November 1974 the Trudeau government introduced new cannabis legislation in the Senate, Bill S-19.8 This marked the first effort in Canada to separate cannabis by statute from the opiate narcotics and cocaine. Bill S-19 proposed to remove cannabis from the Narcotic Control Act and place it in a special section of the Food and Drugs Act,9 which governs controlled drugs such as amphetamines and barbiturates) and restricted drugs such as LSD and other strong hallucinogens). After discussion and modification in the Senate, the new amendment was forwarded to the House of Commons where it died on the order paper of Parliament in 1976. No other cannabis legislation was introduced for the remainder of the decade. In early 1980, the legislative plans put forward by the new Trudeau administration in the Speech from the Throne included a proposal to move cannabis to the Food and Drugs Act.

In brief, Canadian narcotic drug law remains among the harshest anywhere. Since the inclusion of cannabis in the Narcotic Control Act in 1923, it has been legally defined as a "narcotic," inextricably linked with heroin in law and public belief. However, in the mid-196Qs perceptions began to alter. With the growing influx of marijuana offenders before the courts, the harshness of the legal response became an object of-concern (Cook, 1970). Given the popularized evidence of cannabis’ minimal addictive properties, questions were raised as to why it should still be treated, in law, the same as heroin. Therefore, the next section will provide an historical overview of the evolution of Canadian narcotic drug law, to set the stage for the creation of "cannabis criminals" in the mid-1960s. Then the following sections will describe the legal response to cannabis use from 1965 to 1979.

The Development of Narcotic Drug Law up to 1965

The history of the initial narcotic drug legislation has been documented extensively by Cook (1969); Green (1979); Solomon and Green (1980); and Giffen et al. (forthcoming). The first anti-opium statutes, directed at immigrant Chinese, were enacted in 1908. Subsequent debates, concerned also with cocaine and morphine, led to the Opium and Drug Act of 1911 and the 0pium and Narcotic Drug Act of 1920. The addition of cannabis to the schedule of prohibited drugs in 1923 was accomplished without provoking any discussion in Parliament (Cook, 1969).lø Major developments are summarized in Table 1.

Since 1911, when the possession offense was created, narcotic statutes did not separate it from the offenses of importation, manufacture, and sale in terms of the sentences provided. A series of amendments in the 1920s stipulated progressively more severe penalties for all these offenses, and greatly extended police powers of search and seizure. By 1929, mandatory minimum and a maximum of seven years imprisonment were in effect, along with whipping and sentencing to hard labor. In 1922, peace officers received the right to search, without a warrant, any place except a dwelling in which they suspected illicit drugs were concealed. Police powers were expanded further in 1929 through a measure called a writ of assistance which conveyed special powers for searches of dwellings (see Solomon, 1980). During this era, physicians’ authority to treat opiate dependent persons was progressively diminished. Severe penalties and unusually broad police powers pertaining to both sale and possession of "narcotics" set the stage for defining the addict or drug user, along with the trafficker, as a criminal.

This pattern, which was to dominate the next half century, has been attributed to two principal factors (Giffen et al., forth-coming; Green, 1979; Solomon and Green, 1980). The first was that opiate narcotic use was associated with a negatively stereotyped racial group, the Asiatics, and to a lesser extent, unconventional low-status whites. The creation of the "dope fiend" stereotype made it possible to approach addiction as a moral crusade, demanding harshly punitive measures (Anthony and Solomon, 1973). Soon-to-be Prime Minister MacKenzie King successœully mobilized this cultural antagonism on behalf of a political interest group wishing to prevent further Asiatic immigration. Canada played a prominent role in the international movement among-western nations to criminalize the use and distribution of narcotics. The second factor was that the federal law enforcement agency (RCMP), in conjunction with the Division of Narcotic Control in the Department of Health, from 1920 onwards gained a virtual monopoly over narcotics policies during the crucial early legislative period. At this time, the Canadian medical profession was only weakly organized, similar to the U.S. situation, whereas in Britain medical professionals retained a large measure of control over the treatment of addicts.

In 1955, the special Senate Committee on the Traffic in Narcotic Drugs made the following comment on marijuana:

No problem exists in Canada at present in regard to this particular drug. A few isolated seizures have been made but these have been from visitors to this country or in one or two instances from Canadians who have developed this addiction while being in other countries. (Quoted in Le Dain, 1972:230)

The "problem" was to emerge in the mid-1960s with the rapid escalation of various forms of recreational drug use by young persons. At this time, cannabis was governed by severe penalties fashioned expressly for the opiate narcotics.

Legal Response to Cannabis Use from 1965

Until recently, the federal drug legislation in the Narcotic Control Act and the Food and Drugs Act has been held to be based constitutionally upon the criminal law power (Le Dain, 1972:213). However, the 1979 decision of the Supreme Court of Canada in R. v. Hauser provided a different basis for federal jurisdiction in this area.ll The Court reasoned that since drug abuse was not a problem in the 19^th century at the time of Confederation (1867), federal drug law was to be classified with other new developments (e.g. aviation, radio communications) as legislation enacted under the general residual federal power." That, is generally referred to as the "Peace Order, and Good Government" clause or the general power of Parliament (Le Dain, 1972:254). The implications of the Hauser case for cannabis policy, and indeed all policies regarding prohibited drugs, are not clear (see Bryan, 1979; Hovious, 1980). The potential for creating non-criminal drug violations has been significantly expanded. Further clarification must await the attention of the Judiciary and Parliament.

The shift in the constitutional basis of drug law by the Hauser ruling in no way limits federal jurisdiction over illicit drugs. As in the past, provincial governments are effectively precluded from enacting criminal prohibitions in the illicit drug field; they remain the exclusive domain of the federal government. A certain degree of consistency has been inherent in the structure of Canada’s drug laws, as well as a tendency towards conservatism in drug law reform. Uniformity has been enhanced by assigning the primary responsibility for enforcement and prosecution of drug laws, respectively, to the Royal Canadian Mounted Police and the federal crown prosecutors from the office of the Department of Justice.

The contemporary official response pattern, in continuance of historical precedent, has been to rely primarily on the criminal sanction to deter non-medical drug use. Law enforcement has been the traditional response to narcotic drug use throughout this century. The treatment approach, which gained some momentum in the 1950s in response to problems of heroin addiction, was not extended to the emerging category of youthful users of marijuana and other hallucinogenic substances. As Table 2 shows, in terms of sheer volume, convictions for cannabis offenses have involved far more persons directly than any other illicit drug. Cannabis use, which is translated into legal terms as the crime of simple possession, has received a greater response than other offenses (i.e. trafficking, possession for the purpose of trafficking, importing, and cultivation). Table 3 indicates that in any given year the large majority of cannabis convictions are for simple possession. In overview, official record data for 1965 to 1978 show that vigorous enforcement against cannabis use was accompanied by a lessening in severity of dispositions for simple possession (Table 4). Phases in the response to cannabis use will be characterized as "Get Tough" (1965-1968), "Initial Softening" (1968-1971), "Reduction of Penalties" (1972-1974) and "Malign Neglect" 91975-1979). Topics to be examined include the law, official arrest and conviction statistics,l2 sentencing trends, and enforcement practices

TABLE 2
Total Convictions for various Drugs, Canada, 1965-1978

Source: Bureau of Dangerous Drugs (BDD), Health Protection Branch, Health and Welfare Canada
a. Not prohibited until 1979, under Part IV of the Food and Drugs act
b. Altered from BRD summary table to correspond to Table E.55 of Final Report (leDain 1973:891)
c. Altered from BRD summary table on the basis of Table A.1 of cannabis (leDain 1972:322)

"Get tough" (1965-1968)

As noted, the legislation governing illegal behavior with respect to cannabis during the period 1965-1968 continued to be the narcotic Control Act. Cannabis had been added to its schedule of prescribed drugs in 1923. From that time, all the changes in the Narcotic Control Act which incorporated progressively more severe penalties automatically applied to cannabis. When the first influx of persons charged with simple possession of marijuana and hashish began to appear in court, the prosecutor had no choice under the Narcotic Control Act but to treat the charge as an indictable offense.

The term "indictable" in Canadian law refers to offenses which are viewed as "more serious" and carry a maximum penalty of more than two years incarceration; the "less serious" summary proceeding (carrying lesser penalties) was not available at this time. If the defendant was found guilty of simple possession, the Narcotic Control Act provided for a term of imprisonment up to seven years. The only option open to the judge, other than incarceration, was to suspend sentence and impose probation. The monetary sanction was excluded by a provision in the Canadian Crim1nal Code which disallows a "fine only" penalty for an indictable offense that carries a maximum sentence of more than five years in prison.l3 At this time, the penalty for cultivation was the same as for simple possession, and conviction for trafficking, possession for the purpose of trafficking, and importing could result in life imprisonment.

Table 3
Charges and Convictions involving Cannabis under the Narcotic Control Act, Canada, 1968-1978

a. Source: Crime Statistics, Police, Catalogue 85-205 Statistics Canada
b. Source: bureau of Dangerous drugs, Health protection Branch, Health and welfare Canada, and cannabis (1972:322-323) Discharges are included in "Conviction" totals in this source.

Total Convictions for cannabis offenses in Canada rose from 60 in 1965 to 1,429 in 1968 (Table 2). A breakdown of total convictions by type of offense was not retrievable from official records until 1968. In that year,75% of total convictions were for simple possession (Table 3).

During this interval, the chances of going to prison for simple possession were about even; Table 4 shows that the odds were slightly in favor of getting a suspended sentence rather than jail. In addition to the factor of a prior record, sentencing variation for drug offenses has been held to be related to regional discrepancies in judicial behavior:(Cook, 1970:138; Whealy, 1970:276). Ontario Magistrates’ and Appeal Court decisions at this time tended to be generally more lenient than their counterparts in other provinces. The more punitive decisions in this period often referred to the intent of Parliament to treat the matter of simple possession as serious by permitting a maximum seven-year sentence.l4 The judicial reasoning appeared to be that the increase in marijuana use required the imposition of severe punishment in the interests of deterrence (Le Dain, 1972:247-249).

TABLE 4
Sentences awarded for simple Possession of Cannabis, Canada, 1967-1978

Source: 1967-1971; Cannabis (1972; 249, 290, 324-325
Source: 1972-1979; Bureau of Dangerous drugs, Health protection Branch, Health and Welfare Canada
¹Not an option in law until August 1969
²Not an option in law until July, 1972

Additions to Food and Drugs Act

The ever-increasing number of accused being dealt with by the courts during the "Get Tough" period was mainly the result of the enforcement efforts of the RCMP. This agency has a long history of close cooperation in the drug field with national enforcement agencies in other countries, INTERPOL, municipal and provincial forces in Canada, and the Division of Narcotic Control in the federal Department of Health. Most police departments in larger cities already had a drug squad, sometimes as part of the morality squad, and these were expanded to deal with the upsurge in availability of cannabis and other drugs. The procedure at this time was for the local force to turn over evidence of drug crimes to the RCMP for further action.

As described earlier, the Narcotic Control Act provides all police with unusually broad powers of search with respect to drugs.

The police may enter and search any premises except a dwelling and search any person found therein, without the necessity of an arrest, when they reasonably believe an offense regarding a prohibi ted drug is being committed. RC MP officers have an additional power granted under a general warrant called a writ of assistance, to enter and search a dwelling and its occupants, with any assistance required under the same conditions. A writ of assistance has no limitations on time or place, is not subject to judicial accountability, and is valid during the entire career of the particular officer to whom it is issued

In summary, during this period, judges, prosecutors, and police, had inherited a Narcotic Control Act that provided severe penalties, few sentencing options, and broad powers for apprehending and punishing cannabis offenders. The application of a criminal justice apparatus designed for opiate control to the ever-increasing availability and use of cannabis resulted in a rapid increase in convictions for simple possession of marijuana and was a common outcome During this "Get Tough" period, the public awareness and debate over drug use, when contributed to the formation of the Le Dain Commission in 1969, also focused attention on the growing criminalization of young persons for cannabis use. Questions and criticisms were raised in Parliament concerning the severity of sentences being given by the courts (Cook, 1970:145). It appeared that change in the cannabis law might be imminent.

"Initial softening" (1969-1971)

Although statements by the Minister of Health and Welfare in late 1968 suggested that marijuana might soon be added to the schedule of restricted drugs, along with LSD, in the Food and Drugs Act (Cook, 1970), this did not occur. Instead, by defining possession as a hybrid offense, an amendment to the Narcotic Control Act in August 1969 permitted summary proceedings in cases of simple possession of any narcotic. The discretion of crown prosecutors to choose this option was guided by the federal Department of Justice which issued "general rules" to direct the application of the new amendment. For cannabis, summary conviction was recommended for a first or second offense; indictment was directed for a third or subsequent offense and after a conviction relating to hard drugs (Le Dain, 1972:

246). Sentences under the summary election were limited to a six-month term and/or a fine of up to $1,000 for a first offense and one year’s imprisonment and/or a $2,000 fine for subsequent offenses.

During the 1969-1971 period, the figures representing total arrests and convictions for cannabis offenses continued to mount. As Table 3 indicates, convictions for simple possession numbered 2,313 in 1969 and 8,389 in 1971-more than a three-fold increase. Although convictions for drug offenses other than simple possession of cannabis also rose, numerically they represented far fewer persons. The Narcotic Control Act was being enforced mainly against cannabis, and against possession of the drug rather than distribution.

Trends in sentencing for simple possession shifted abruptly in 1969. Judges began making use of the "fine only" option that was made possible in mid-1969. In cases between 1969 and 1970, the imposition of imprisonment was reduced from 33.9% to 10.1%, and a suspended sentence from 48.5% to 21.¢% (Table 4). By the end of 1971, 77.3% of all convictions resulted in only a fine. Figure 2 illustrates this shift in sentencing patterns for possession. Data which were not

available until 1970 on sentencing for the two types of trafficking offenses show a fairly stable trend towards imprisonment in about 80% of convictions (Le Dain, 1972:250).

The beginning of an important change in enforcement patterns occurred in this period. The RCMP enlarged its own drug squad from about 185 officers in 1969 to n early 300 in 1971 to respond to the increase in the availability of cannabis. They began to prepare municipal forces to recognize and deal with drug offenses, and started to turn over responsibility for the laying of charges in simple possession cases to regular police officers. It is not possible to pinpoint just when this changeover began or at what rate it occurred. The Le Dain Commission, writing in 1972, was not able to be more specific than "the last year or two" (1972:244). In light of the transformation of drug enforcement from a highly specialized RCMP task to a more routine police activity, local forces instigated or enlarged their own drug squads and trained police constables in related procedures. The shift appears to have been a gradual process of the early 70s, and was given official acknowledgment by 1973.16 The resulting infusion of manpower into the drug enforcement field may have been a contributing factor, along with increased use levels, to the continued rapid rise in arrests and convictions for simple possession in the 70s.’7

In review, the "Initial Softening" response from 1969-1971 was characterized by a legislative change which led to more lenient dispositions for the offense of simple possession of cannabis. However, this period was also marked by a large upswing in arrests and convictions and by an increase in police resources for enforcement.

"Reduction of penalties" (1972-1974)

During the 1972-1974 period, the federal government took two steps which continued a policy of mitigating the severity of penalties for cannabis offenses. The first was the passing of the discharge provision in 1972, and the second was the introduction in 1974 of a bill to move cannabis control from the Narcot1c Control Act into the Food and Drugs Act.

A discharge is generally intended to relieve the offender of some of the unduly harsh consequences of a criminal conviction (Leon, 1977b:53). Judges have the discretion to award a discharge when they consider that this course is "in the best interests of the accused and not contrary to the public interest."l8 The interim publication of the Le Dain Commission recommended an absolute discharge provision for first offenders in cases of simple possession of psychotropic drugs

(1970:252). Although this type of sentencing option had been under consideration for some years, there is a likelihood that concern with the growing number of young drug offenders hastened the passage of discharge into law sooner than might otherwise have been the case (Leon, 1977b:39).

In July 1972 the discharge provision came into effect. The court was given the option, when an accused pleaded or was found guilty, to grant an absolute discharge or a conditional discharge (in which a term of probation is imposed). The Criminal Code reads that an accused who is discharged "shall be deemed not to have been convicted of the offense" (emphasis added).’9 However, an amendment to the Criminal Records Act which became law at the same time as the discharge provision stated that, "This act applies to a person who has been granted an absolute or conditional discharge . . . as if he had been convicted" (emphasis added).20 Since the Criminal Records Act provided terms by which someone could receive a pardon for a criminal record attained through conventional conviction for a criminal offense, this amendment seemed to contradict the intention of the original legal change creating the discharge option. Not surprisingly, confusion resulted over the discharge provision (see Leon, 1977b). It was held by some commentators that a discharge avoided a conviction but created a criminal record (Swabey, 1973).

However, a later court ruling was that a previous discharge did not constitute a criminal record when sentence was considered, although it was relevant in deciding whether to grant another discharge.2l

In practice, the major effect of the discharge provision was to reduce the waiting period before an offender became eligible to apply for a pardon. This meant, with respect to the summary offense of simple possession, that a person awarded an absolute discharge had to wait one year, while a convicted person had to wait two years before applying for a pardon. Upon indictment, the minimum waiting period was made five years.22

Although the 1972 law did not relate the discharge option to any offense specifically, when it came into effect, federal drug prosecutors received a policy directive from the Department of Justice in Ottawa. This directive instructed prosecutors to recommend absolute or conditional discharge in all cases of first offense of simple possession of cannabis where there was not a previous criminal record or a concurrent conviction for another offense (Le Dain, 1973:955).

There was some question, however, as to whether the onus was on the prosecutor or defense counsel to initiate the submission for a discharge, or whether the prosecutor fulfilled the intent of the directive simply by not opposing such a petition (Sommerfeld, 1974:7). The Le Dain commissioners also noted that initial reaction from the courts was not favorable towards applying discharge automatically in a particular type of case unless legislation clearly required it (1973:955).

The discharge provision did not become an overly popular exercise of judicial discretion in cases of simple possession of cannabis as is evident in Table 4. While 12.8% received a discharge in 1972 when it was in force for the last six months, the proportion increased to only 16% in 1973. In comparison to 1971, the figures indicated a slight tendency for discharges to replace fines and suspended sentences. This trend was quite mild, compared to the dramatic shift from imprisonment and suspended sentences to fines in 1970 (see Figure 2). It appears that the discharge provision had a relatively minor impact on sentencing practices at this time.

Between 1972 and 1973, arrests for cannabis offenses more than doubled, and the upward trend of possession convictions continued in 1974 to a total of 27,202 (see Table 3). By 1973, the assumption of responsibility by local police, rather than by the RCMP, for possession cases was generally established. By the end of 1974, the RCMP drug squad had been expanded to 530 members who had primary responsibility for trafficking and other drug offenses.

The second step taken by lawmakers during this period of "Reduction of Penalties" was to introduce in late 1974 a bill (S-19) that would have placed cannabis in its own special section of the Food and Drugs Act. The provisions of Bill S-IN9 which would have affected the official response to simple possession were the following. First,-prosecutors would have had no option but to proceed by way of summary conviction. Secondly, no jail sentences would have been permitted except in default of payment of a fine, and these would have been limited to three months for a first and six months for a subsequent offense. Thirdly, the maximum penalties would have been reduced to a fine of up to $500 for a first offense and $1,000 for a subsequent one. However, Bill S-19 never progressed to final reading.

"Malign neglect" (1975-1979)

When this period opened, it appeared that the Canadian government was on the verge of enacting "new" cannabis legislation. As discussed above, a possible amendment to place cannabis in the Food and Drugs Act had been voiced in 1968; such a proposal resembled the interim Le Dain recommendation (1970:249). The Senate had passed Bill S-19 after incorporating a provision for automatic pardon after a discharge. However, the Narcot1c Control Act, substantively unaltered since 1969 continued to be in force in the phase of not-so-benign neglect, after Bill S-19 died on the order paper of Parliament in 1976.

What then was happening with regard to arrests and convictions in this era of "Malign Neglect" on the part of legislators? In 1975, for the first time, the total number of charges and convictions for cannabis declined (Table 3). The decrease in total convictions was attributable to the possession offense which showed a decline of 8% over 1974 figures. Increases were recorded in 1975 for both types of trafficking offenses. In 1976 convictions again rose, and in 1977 reached an all time high of 33,961 for simple possession. The figures dropped again somewhat in 1978, to 27,609.

Sentences for simple possession in 1975 to 1978 did not display any marked departure from trends exhibited in the prior period of penalty reduction (Table 4). There were slight decreases in the proportion of fines and gains in the proportion of discharges awarded. Trial judges continued to disagree that discharge should be routinely awarded in cannabis possession cases:

But it is quite another thing to appear to establish as a matter of policy that in all unremarkable cases of this sort an absolute or conditional discharge will be granted; to some that would almost amount to a derogation of and an invitation to break a law passed by Parliament and still in force and which can be repealed only by Parliament. The court should not do so inferentially by disregarding the factor of deterrence and rendering the legislation, so far as this offense is concerned, practically nugatory.23

Fines remained the most common outcome. It does not appear that sentencing practices were being unduly affected by the existence of and debate over Bill S-19 at this time. In 1977, the actual number of persons sent to jail (1,317) was the largest in any one year since cannabis offenders began to appear before the courts. By 1978, the RCMP held about 240 writs of assistance under the Narcotic Control Act (Solomon, 1980).

The title for this period, "Malign Neglect," describes the inactivity of the parliamentary body while the police and courts continued to generate a high level of criminalization for cannabis use. The official response pattern was a continuation of the enforcement centred approach displayed throughout the preceding phases.

Conclusion

Despite its demise, the significance of Bill S-19 perhaps layin it being the first piece of legislation in Canada framed specifically for cannabis. Since cannabis was added to the schedule of the Narcotic Control Act in 1923, virtually without parliamentary comment, it has been subject to all the same legal constraints as the opiates and cocaine. Conversely, although efforts to reduce penalties in 1969 and 1972 seemed to be principally in response to cannabis use, these changes applied equally in law to the possession of other illicit drugs in the Narcotic Control Act schedule as well. If a similar bill to S-19 is introduced and eventually passed in Parliament, a possibility raised early in 1980 by the Trudeau government, cannabis will be controlled by the Food and Drugs Act.24 At the beginning of the 1980s, a move towards repeal of the possession offense seems unlikely, although further reduction of penalties may be forthcoming.25 Next to be considered is a useful model for assessing this and other cannabis control policies.

A MODEL OF CRIMINALIZATION

In assessing the overall impact of a legal policy at the societal level, it is useful to have a way of determining whether criminalization is increasing or decreasing over time. In the more traditional view, criminalization is measured by the number of convictions (i.e. the officially recorded crime rate). The implicit assumption is that the social effect of a criminal record accompanying conviction is a constant or, in other words, total criminalization for a particular law equals the number of criminals produced through arrest, prosecution, and conviction. The labeling perspective has suggested that the effects of criminalization will vary according to characteristics of the individual, the situation, and the penalty (Hagan, 1977). The severity of disposition has been considered an important factor in establishing the consequences of the overall labeling process (Hepburn, 1977-Siegal, 1975; Schwartz and Skolnick, 1962): A model is required which incorporates both the official and social aspects of criminalization.

Criminalization r will be viewed as a two-dimensional process. The first component is the official intervention leading up to a finding of guilt for a criminal offense, and is reflected in the recorded conviction statistics. The dimension will be referred to as "official criminalization." The second aspect consists of the consequences following the designation of a criminal label, which may be related to the sentence imposed. This dimension will be designated "social criminalization." Unlike the traditional model, the possibility is assumed that the effect of a criminal record may vary according to the type of disposition awarded. Sentences are viewed as relative in their criminalizing potential, and can be scaled and treated as intervening variables. Thus the total amount of criminalization occuring is a function of both the number of criminals so labeled and the types of sentences imposed on offenders. This conceptualization provides a framework within which measures directed at altering the "criminalization" associated with a particular policy can be assessed, in both the quantitative and the qualitative sense.

How then may this model be applied in evaluating the legal response to cannabis use? A central concern is whether criminalization is increasing or decreasing over time. Reduction of criminalization may take the form of either a decrease in the frequency of official sanctioning (as measured by the conviction statistics) or a change towards less severe sanctioning (as shown by more lenient sentenc ing). In illustrating the model with reference to criminalization for cannabis use, the Canadian-data presented in the previous section of this chapter, and from other jurisdictions where relevant, will be referred to. First to be considered are official criminalization patterns and then those of social criminalization to which most efforts at legal change recently have been directed in Canada.

In Canada, there have been no changes in law as yet that would lessen criminalization through a reduction of the number of persons officially sanctioned for cannabis use. The Le Dain Commission’s (1972) proposal for the removal of the prohibition against simple possession illustrates the form such a policy could take, as do the laws passed in 12 American states by 1979 regarding marijuana (see Single, 1980). Although these U.S. statutes vary somewhat in particulars, they have in common that possession of less than a specified amount of cannabis is a civil violation or a misdemeanor subject only to a relatively small fine. Early reports from Oregon (1974) and California (1977) indicate that such measures have been accompanied by immediate drops in the number of recorded offenses.2fi In Canada, it will be recalled from the earlier discussion, no reduction in the quantitative aspect of criminalization has been demonstrated but rather the opposite: the flow of persons subject to charge and conviction has increased steadily (with the exception of a small decline in 1975 and again in 1978) from 1965 up to the present. The extent of official criminalization is reflected in the figure of approximately 190,000 convictions for cannabis possession by 1978 (Table 3).

There have been two legal changes in Canada that reflect diminished criminalization on the social dimension. Reduction of penalties was made possible in 1969 by the Narcotic Control Act amendment and in 1972 by the introduction of absolute and conditional discharges in the Criminal Code. The first of these measures permitted possession to be treated as a summary offense which added a "fine only" as an alternative to imprisonment or a suspended sentence. The discharge provision widened the sentencing choices further. As was shown earlier (Table 4 and Figure 2), judges took advantage of both of these options, although fines have been a more popular exercise of judicial discretion than discharges. Also, a trend towards greater leniency in sentencing has been demonstrated consistently from 1969 to the present. Thus some reduction of the qualitative aspect of criminalization, as displayed in the nature of the sanction, has been occuring over time, in both law and practice.

The question that remains is whether the total amount of criminalization for cannabis use, as a function of both the number of persons subject to this official process and the sentences they receive, has been increasing or decreasing. Such a computation requires some form of rank ordering of the sentencing outcomes. By way of illustration, if the most serious consequences are associated with incarceration, by simply assigning a "2" value to this outcome and a "1" to all others, it is evident that total criminalization has been increasing. The actual number of persons imprisoned rose each year up to 1977, as had the number receiving other dispositions. The comparative harm of a custodial as compared to a non-custodial outcome is more obvious than the relative liability of an absolute discharge compared to a conditional one, or a fine compared to probation. Although the discharge is intended to be less criminalizing than a conviction, the extent to which this aim is achieved remains largely speculative (Leon, 1977b). Assigning a rank order to these non-custodial dispositions would seem premature.

Thus, as one aspect of the findings from the interviews with cannabis offenders presented in Chapters 5 and ¢, variation in the consequences following official labeling, in relation to sentences received, shall be addressed. This will be a first step towards refining the concept of social criminalization in the model. While sentencing has grown increasingly complex as options multiply (Fox and O’Brien, 1975), the success of such efforts in reducing adverse consequences to the individual has seldom been examined empirically. Yet such an attempt is necessary if any cost-benefit assessment is to be possible.

 

Notes

1 Major figures identified with the labeling perspective include Tannenbaum (1938), Lemert (1951), Garfinkel (1956), Kitsuse (1962), Becker (1963), Erikson (1962, 1966), Matza (1964), and Cicourel (1968). For critiques, defenses, and further elucidation of this perspective, see Goode (1975), Wellford (1975), Kitsuse and Spector (1975), Nettler (1974), and Hagan (1977).
2 Cannabis use has illustrated "illegal consumption" (Glaser, 1971:32), "victimless crime" (Schur, 1965), "victimless vice" (Hagan, 1977:66), and the "significance of ban" (Matza, 1969:146). It has also received considerable ethnographic study, as in, for example, Goode (1970), Plant (1975), and Zimmerman and Wieder (1977).
3 R.S.C. 1970, c. N-1.
4 Narcottc Control Act, s. 10(3).
5 Narcottc Control Act, s. 10(4).
6 Levttz v. Ryan (1972), 9 C.C.C. (2d) 182 (Ont. C.A.).
7 R. v. Wray (1970), 4 C.C.C. 17, 11 C.R.N.S. 235. Hogan v. the Queen (1975), 18 C.C.C. (2d) 65, 26 C.R.N.S. 207.
8 Bill S-19. An Act to amerJ +;A rA Control Act, and the Crila tne r ooa ana torugs ^.;~, ~.,~ iv ~,-cub scninal Code (1974-75).
9 R.S.C. 1970, c. F-27.
10 Galliher and Walker (1977) document a similar lack of Congressional debate and inter›st during the enactment of cannabis legislation in the United States in 1937.
11 R. v. Hauser et al. (1979), 8 C.R. (3d) 89; 26 N.R. 541; 16 A.R. 97.
12 While the limitations of official record sources as measures of deviant activity have been well recognized (de Fleur,1975; Giffen, 1976a), as indicators of the legal response to deviance such statistics may be more acceptable (Black, 1970). It is in the latter context that the official records compiled by the Bureau of Dangerous Drugs in Ottawa are utilized in this chapter. Even for this purpose, the accuracy of Canadian drug conviction statistics has not been established. The transformation of the Bureau's records from a manual card file system to computerized storage in 1977 enabled  retrospective estimate of 3% to 17% underreporting of convictions to be made for any given year since 1968.
13 Criminal Code, s. 646(2).
14 R. v. Lehrmann (1968), 2 C.C.C. 198, at 200. R. v. Adelman (1968), 3 C.C.C. 311 (B.C.A.A.).
15 Narcotic Control Act, s. 3(2).
16 Inspector G. Tomalty, officer in charge of RCMP drug enforcement, provided details in an interview with the ARF publication, The Journal, October 1972. Crime Statistics of 1972-73 also made a reference to this trend (p. xii).
17 Studies providing support for this interpretation include Black (1970), de Fleur (1975), Lindesmith (1965), and McDonald (1969).
18 Criminal Code, R.S.C. 1970, c. C-34, s. 662.1(1).
19 Criminal Code, s. 662.1(3).
20 Criminal Records Act, R.S.C. 1970, c.
21 R v. mcLean (1978) 7 C.R. (3d) (Ont. C.A.)
22 Criminal Records Act, s. 2(2), s. 2(3).
Although a pardon is often equate 1 with some form of "erasure" of a criminal record, the actual st pulation is that the conviction be "vacated" and the federal recor ls be kept separate from those of unpardoned criminals. Other t lan removing disqualification from federal government- employment and other areas under federal jurisdiction, a pardon has limited applicability (Leon, 1977b:60; John Howard Society, 1978).
23 R. v. Sampson (1975), 23 C.C.C. (2d) 65 (Ont. C.A.).
24 Like the Narcotic Control Act, the Food and Drugs Act creates federal criminal offenses and provides the police with the same broad powers of search (s. 37, s. 45).
25 NORML Canada, formed in 1976 and affiliated with the U.S.- based National Organization for the Reform of Marijuana Laws, takes as its aim the repeal of the simple possession offense.
26 To place cannabis use beyond the reach of criminal sanction is problematic as long as any offenses related to cannabis continue in law. For instance, in Orœgon, recorded offenses did not decline uniformly in all jurisdictions after`legal changes there, but stayed high in some areas where police apparently laid a transportation charge instead of a possession one (Oregon, 1974).

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